The Federal Small Business Ombudsman, Kate Carnell, has released the findings of her investigations into the Road ‘Safety’ Remuneration Tribunal (now dead thankfully) and its discriminatory attempts to put owner-drivers out of business.
In summary, the Ombudsman has found that:
- The Tribunal’s price control orders discriminated against owner-drivers so badly as to cause great financial losses and even put many out of business. (Fortunately the Tribunal was abolished)
- Several truckies committed suicide because of this.
The full report is here. Below are the key findings and recommendations.
Key findings of the Inquiry
1. The Payments Order resulted in owner drivers in the long distance and supermarket distribution sectors being made uncompetitive. This exacerbated the competitive pressures already faced by owner drivers.
2. There was significant uncertainty and anxiety for owner drivers (and others involved in the industry) about the application and impact of the Payments Order given its complexity and short implementation time.
3. Uncertainty for owner drivers continues beyond abolition of the Tribunal and the Payments Order.
4. It is with great regret and sympathy that it was reported to the Inquiry that some owner drivers found they were unable to cope with further hardship caused by the Payments Order and took their own lives.
5. The effect of the Payments Order on individual owner drivers and small businesses was significant, with financial hardship and stress placed on personal relationships and mental and physical health.
6. The Payments Order was discriminatory in its application to owner drivers and small family businesses and this discrimination was not based on a sound and sufficient evidence base.
7. The Tribunal’s processes were adversarial and overly legalistic with an absence of flexibility extended to owner drivers to accommodate their lack of legal representation and limited understanding of tribunal and court-like processes.
8. Owner drivers who appeared before the Tribunal were not treated with due respect and felt that the Tribunal lacked independence and impartiality.
9. Tribunals are suited to resolving disputes; they are not appropriate vehicles for developing complex industry-wide regulation that intervenes in market forces.
10. Although the issue of compensation was raised during consultation, there are significant difficulties in compensating small business impacted by the Payments Order, particularly approaches to eligibility and quantum would be extremely difficult to implement fairly.
11. Fatigue management laws under the National Heavy Vehicle Law are inflexible and as a result may lead to perverse situations, such as permitting a person to drive when they are fatigued.
12. Safety in the transport industry should not be addressed by legislating rates of pay.
13. It is costly and onerous for heavy vehicle drivers who unload/load to have to complete site specific induction at every site for work health and safety purposes. Induction can vary between 15 minutes and 4 hours and some drivers can have as many as 40 induction cards.
1. When developing regulation that will have a significant impact on small businesses, consideration should be given to the potential impact on people’s mental health.
2. The Inquiry notes future consideration by the NSW Industrial Relations Commission of rates of pay for owner drivers covered by the General Carriers Contract Determination (NSW) should consider the experience of the Payments Order on small businesses. Given the example of the Payments Order and its detrimental impact on owner drivers, the Inquiry strongly discourages the setting of mandated rates of pay that only apply to owner drivers and small businesses.
3. Existing and future tribunals dealing with small businesses should employ less formal and legalistic processes, not be adversarial, facilitate self-represented parties and be free of bias, actual or perceived. Processes should be collaborative and consultative.
4. Given that tribunals are not appropriate vehicles for developing complex industry-wide regulation that intervenes in market forces, governments should consider other bodies or frameworks with expertise in regulation and facilitative processes to achieve negotiated and appropriate outcomes.
5. The development of any major piece of regulation by a government agency that impacts on small businesses, including the establishment of tribunals or similar bodies, should:
- involve significant consultation with all players in the industry, with proactive and targeted efforts made to reach and involve small businesses;
- take into account the concerns and views of small businesses; and
- be based on ongoing and accessible feedback mechanisms for small businesses before, during and after implementation of the regulation or establishment of the body.
6. The implementation of new regulation should afford small businesses sufficient time to understand, seek advice and be able to make any business changes to adapt to the regulation.
7. Where government introduces significant regulation that intervenes in a market, it has a responsibility to provide education and adequate support, and to consider providing compensation where appropriate.
8. The Australian Small Business and Family Enterprise Ombudsman encourages industry associations to work with the media to ensure that in reporting accidents involving trucks, fault is not impliedly attributed to truck drivers before the outcome of a police investigation.
9. The Australian Small Business and Family Enterprise Ombudsman encourages the Transport and Infrastructure Council and the National Heavy Vehicle Regulator to consider funding national advertisements to educate road users about how to drive near and around trucks, given that the vast majority of multi-vehicle accidents involving trucks are not the fault of the truck.
10. Governments should consider establishing an apprenticeship/traineeship scheme to get more young people into the trucking industry to overcome the growing lack of experienced and professional drivers and an ageing workforce.
11. Given the strong support of owner drivers, the Australian Small Business and Family Enterprise Ombudsman should inquire into ways to reduce payment terms for owner drivers as part of its Inquiry into Payment Terms.
12. The Australian Small Business and Family Enterprise Ombudsman recommends that the Department of the Treasury and the Australian Competition and Consumer Commission work with the industry to investigate developing a Code of Conduct for the road freight industry under the Competition and Consumer Act 2010 (Cth).
13. The Australian Competition and Consumer Commission should target information materials (e.g. fact sheets) for owner drivers and small businesses about the unfair contracts regime with respect to the reforms that take effect in November 2016.
14. The Australian Small Business and Family Enterprise Ombudsman encourages industry associations in the road freight industry to proactively engage with owner drivers and small businesses and to represent their views in government processes and build upon communication networks.